371 U.S. 341

83 S.Ct. 448

9 L.Ed.2d 357

SHOTWELL MANUFACTURING COMPANY, et al.,Petitioners,

v.UNITED STATES.

No. 16.

Argued Oct. 11 and 15, 1962.Decided Jan. 14, 1963.

Rehearing Denied March 18, 1963.

See 372 U.S. 950, 83 S.Ct. 931.

[Syllabus from pages 341-343 intentionally omitted]

George B. Christensen and William T. Kirby, Chicago, Ill., for petitioners.

Joseph M. Howard and Louis F. Oberdorfer, Washington, D.C., forrespondent.

Mr. Justice HARLAN delivered the opinion of the Court.

1 This case is here for the second time in consequence of the remand that wasordered at the 1957 Term. United States v. Shotwell Mfg. Co., 355 U.S. 233,78 S.Ct. 245, 2 L.Ed.2d 234.

2 In 1953 petitioners were convicted after a jury trial in the United States DistrictCourt for the Northern District of Illinois of willful attempted evasion of federalincome taxes of the Shotwell Manufacturing Company for the years 1945 and1946. Int.Rev.Code of 1939, § 145(b), 53 Stat. 63, 26 U.S.C.A. § 145(b). Theindividual petitioners, Cain and Sullivan, were officers of Shotwell, a candymanufacturer. The charge was that the company's tax returns for these yearshad not reported substantial income, received from one Lubben, on sales ofcandy above OPA (Office of Price Administration) ceiling prices—so-calledblack-market sales.

3 On appeal the convictions were reversed and a new trial ordered by a dividedCourt of Appeals on the ground that the District Court should have orderedsuppressed certain evidence, used at the trial, which petitioners had furnishedthe Government in reliance on the Treasury's then 'voluntary disclosure policy.'225 F.2d 394. In substance that policy amounted to a representation by theTreasury that delinquent taxpayers could escape possible criminal prosecutionby disclosing their derelictions to the taxing authorities before any investigationof them had commenced. See 355 U.S., at 235, note 2, 78 S.Ct., at 248; pp. 348—352, infra.

4 The evidence held subject to suppression consisted of tabulations purporting toshow the amount of unreported black-market income received by Shotwellfrom Lubben during the two tax years in question, and offsetting black-marketpayments by Shotwell for the purchase of raw materials which almost matchedthe black-market receipts. Concluding that petitioners' disclosure had been agenuine one (contrary to the District Court's finding) and that it had been madebefore any investigation of Shotwell's tax returns had started and was thustimely (a question not reached by the District Court, 355 U.S., at 236, 78 S.Ct.,at 248;), the Court of Appeals held that the disclosure was valid and that theGovernment could not, consistently with the Fifth Amendment, use thedisclosed material at petitioners' trial.

5 The matter then came here for review on the Government's petition forcertiorari, during the pendency of which the then Solicitor General moved toremand the case to the District Court for further proceedings on the suppressionissue—an issue which both sides recognized had properly been one for thecourt and not for the jury. 355 U.S., at 244, 78 S.Ct., at 252; see United Statesv. Lustig, 2 Cir., 163 F.2d 85, 88—89, cert. denied, 332 U.S. 775, 68 S.Ct. 88,92 L.Ed. 360. The motion was based on the claim that newly discoveredevidence in possession of the Government would show that the Court ofAppeals' decision as to the bona fides and timeliness of the alleged disclosurewas the product of a tainted record, involving an attempt on the part of thesepetitioners 'to perpetrate a fraud upon the courts.' 355 U.S., at 241, 78 S.Ct., at250. Without reaching any of the questions decided by the Court of Appeals wevacated the judgment of that court and remanded the case to the District Courtwith instructions to reexamine the disclosure episode in light of the parties'additional evidence and that already in the record, to decide anew thesuppression issue, and depending upon its decision to enter a new judgment ofconviction or an order for a new trial, as the case might be. 355 U.S., at 245—246, 78 S.Ct., at 253.

6 The District Court, after a full evidentiary hearing, again denied suppression,

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finding that 'no honest, bona fide voluntary disclosure' had ever been made andthat fraud had 'permeated' the petitioners' disclosure showing at bothsuppression hearings and at the trial.1 These ultimate findings rested primarilyon subsidiary findings that although Shotwell's black-market receipts had not inthemselves been misrepresented, the claim that they had been almost entirelyoffset by payments for the purported purchase of black-market supplies wasfalse—the truth being (contrary to what petitioners Cain and Sullivan hadtestified in the earlier proceedings) that most of Shotwell's black-marketreceipts, 'totaling between three and four hundred thousand dollars,' had foundtheir way into the pockets of Cain, Sullivan and Huebner, all Shotwell officers.The District Court also denied motions for a new trial and overruled challenges,made for the first time in July 1957, to the original grand and petit jury arrays.

7 The Court of Appeals, sustaining these findings and rulings2 and overrulingother challenges to the remand and original trial proceedings, has now affirmedthese convictions, 287 F.2d 667. The case is again before us on certiorari. 368U.S. 946, 82 S.Ct. 386, 7 L.Ed.2d 342. We affirm the judgment below.

8 The principal contention is that notwithstanding the finding that Shotwell'sdisclosure of black-market receipts was fraudulently contrived, the Self-Incrimination Clause of the Fifth Amendment barred the Government's trial useof any of the disclosed material.3

9 Preliminarily we reject as specious petitioners' suggestion that the DistrictCourt's finding of fraud is infirm because the falsity of Shotwell's black-marketpayments, on which that finding principally rested, was an immaterialconsideration in view of the Commissioner's then ruling that black-marketpayments were not includible in the cost of goods sold—in other words, thatShotwell's tax liability would have remained the same whether or not suchexpenditures were truthfully represented.4 The fact is that at the time thedisclosure was made the Commissioner's ruling was even then in litigation, andsome six months thereafter was rejected by the Tax Court, Sullenger v.Commissioner, 11 T.C. 1076, as it also was later by several of the Courts ofAppeals. See Commissioner of Internal Revenue v. Weisman, 197 F.2d 221(C.A.1st Cir.); Commissioner of Internal Revenue v. Guminski, 198 F.2d 265(C.A.5th Cir.); Commissioner of Internal Revenue v. Gentry, 198 F.2d 267(C.A.5th Cir.); Jones v. Herber, 198 F.2d 544 (C.A.10th Cir.).

10 Indeed, the record here shows that petitioners, despite the administrative ruling,attempted to negotiate a settlement reflecting a substantial allowance of such

expenditures, and that in making their disclosure they reserved the right tocontest the ruling by way of a suit for refund, in whole or in part, of theadditional taxes to be assessed in respect of the unreported black-marketincome. Beyond this, had petitioners been able to convince the Treasury thatShotwell's failure to report the black-market receipts had been due to an honest,though mistaken, belief that such income could be offset by black-marketexpenditures, it might well have borne importantly on their liability for civilfraud penalties. Int.Rev.Code, 1939, § 293(b).5 In short, in making theirsuppression contention petitioners cannot escape the consequences of thefinding that their disclosure was fraudulent.

11 It is of course a constitutional principle of long standing that the prosecution'must establish guilt by evidence independently and freely secured and may notby coercion prove its charge against an accused out of his own mouth.' Rogersv. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760. We have nohesitation in saying that this principle also reaches evidence of guilt inducedfrom a person under a governmental promise of immunity, and where that is thecase such evidence must be excluded under the Self-Incrimination Clause ofthe Fifth Amendment. See Bram v. United States, 168 U.S. 532, 542—543, 18S.Ct. 183, 187, 42 L.Ed. 568; Hardy v. United States, 186 U.S. 224, 229, 22S.Ct. 889, 891, 46 L.Ed. 1137; Ziang Sung Wan v. United States, 266 U.S. 1,14, 45 S.Ct. 1, 3, 69 L.Ed. 131; Smith v. United States, 348 U.S. 147, 150, 75S.Ct. 194, 196, 99 L.Ed. 192. The controlling test is that approved in Bram: "aconfession, in order to be admissible, must be free and voluntary: that is, * * *not * * * obtained by any direct or implied promises, however slight * * *."Bram v. United States, supra, 168 U.S. at 542—543, 18 S.Ct. at 187. Evidenceso procured can no more be regarded as the product of a free act of the accusedthan that obtained by official physical or psychological coercion. But in thisinstance we find nothing in the circumstances under which the challengedevidence was procured that would run afoul of these jealously guardedconstitutional principles.

12 A coerced confession claim, whether founded on a promise of immunity orotherwise, always involves this question: did the governmental conductcomplained of 'bring about' a confession 'not freely self-determined'? Rogers v.Richmond, supra, 365 U.S. at 544, 81 S.Ct. at 741. Under any tenable view ofthe present situation we think it clearly did not.

13 The inapplicability here of the constitutional principles relied on by petitionersinheres in both the essential character of this offer of immunity and theparticular response of these petitioners to that offer. The offer was nothing morethan part of a broad administrative policy designed to accomplish the

expeditious and economical collection of revenue by enlisting taxpayercooperation in clearing up as yet undetected underpayments of taxes, therebyavoiding the delays and expense of investigation and litigation. The Treasury's'voluntary disclosure policy,' addressed to the public generally and not toparticular individuals, was not an invitation aimed at extracting confessions ofguilt from particular known or suspected delinquent taxpayers. Petitioners'position is not like that of a person, accused or suspected of crime, to whom apoliceman, a prosecutor, or an investigating agency has made a promise ofimmunity or leniency in return for a statement. In those circumstances aninculpatory statement would be the product of inducement, and thus not an actof free will. No such inference, however, is allowable in the context of whathappened here. Petitioners' response, it is true, might not have been made in theabsence of the Treasury's offer, but that in itself is not the test. The voluntarydisclosure policy left them wholly free to disclose or not as they pleased. Inchoosing to act as they did, petitioners, far from being the victims of thatpolicy, were volunteers for its benefits.

14 Moreover, petitioners were not simply volunteers. Plainly the offer of immunitycontained in the voluntary disclosure policy presupposed, at the very least, thata delinquent taxpayer would make a full 'clean breast of things.' 355 U.S., at235, note 2, 78 S.Ct., at 248. Nothing less satisfies the basic reason for thepolicy—'taking a sensible step to produce the revenue called for by law withthe minimum cost of investigation'6 (emphasis added) and its most recentofficial expression at the time this disclosure was made.7 And the record indeedshows that petitioners could not have understood otherwise.8 Given thesefactors the matter then parses down to this: granting that in deciding whether todisclose or run the risk of prosecution petitioners were initially justified inrelying on the Treasury's general offer of immunity, once a fraudulentdisclosure had been determined upon they must be deemed to have recognizedthat such offer had in effect been withdrawn as to them or, amounting to thesame thing, that they were no longer entitled to place reliance on it. Petitionersare thus in legal effect left in no better position than they would have been hadthe Treasury formally withdrawn its offer of immunity before their disclosurefigures were furnished. The case, then, is not merely one of volunteers but alsoone in which the facts disclosed were deliberately misrepresented. Under noacceptable stretch of the Bram test can petitioners' disclosure in thesecircumstances be regarded as the product of unlawful inducement.9 Itsadmission into evidence did not offend the Self-Incrimination Clause of theFifth Amendment.10

15 Finally, relevant cases in the lower federal courts confirm the view that must bereached on principle. In the comparable situation of a disclosure by a taxpayer

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made only after he knew an investigation of his tax returns had commenced,such courts have consistently, and correctly we think, refused to suppress theGovernment's use of disclosed evidence on the ground that the disclosure couldnot have been induced by the offer of immunity where the offer had lapsed.United States v. Lustig, 163 F.2d 85, 88—89 (C.A.2d Cir.), cert. denied, 332U.S. 775, 68 S.Ct. 88, 92 L.Ed. 360; White v. United States, 194 F.2d 215, 217(C.A.5th Cir.), cert. denied, 343 U.S. 930, 72 S.Ct. 760, 96 L.Ed. 1340;Bateman v. United States, 212 F.2d 61, 65—66 (C.A.9th Cir.) (suppressionalso denied because disclosure not 'full and complete'); United States v.Weisman, 78 F.Supp. 979 (D.C.Mass.), Similarly a dishonest disclosure cannotbe deemed to have been so induced.

16 Petitioners rely on Rex v. Barker, (1941) 2 K.B. 381, 3 All Eng. 33 (more fullyreported there), a decision of the King's Bench Division holding inadmissible ina criminal trial documents, in part fraudulent, which the defendant hadproduced under a similar British disclosure policy. But that case does notsupport their position. For though the defendant there had first made only apartial and misleading disclosure, he had then followed it up with a full andhonest one, after further discussions with the Iland Revenue and in reliance onits disclosure policy. In the case before us no full and honest disclosure wasever made.

17 Since no element of coercion or inducement, in any true sense of those terms,attended petitioners' disclosure, no inroad whatever upon constitutional rights iswrought by our rejection of this suppression claim. On the contrary, to sustainthe claim would amount to turning an important constitutional principle upsidedown. For what we have here is not a case of incriminatory evidence havingbeen induced by the Government, but one in which petitioners attempted tohoodwink the Government into what would have been a flagrant misapplicationof its voluntary disclosure policy.

18 Claiming that it appeared at the second suppression hearing that Lubben,whose transactions with Shotwell formed the basis of the charges in theindictment, had testified falsely at the trial respecting the amount of his black-market payments, petitioners contend that the District Court should haveordered a new trial of the entire case. The Court of Appeals made short shrift ofthis contention (287 F.2d, at 675), and we too find no substance in it.

19 The cornerstone of petitioners' argument is a statement made by the DistrictCourt in the course of its suppression opinion: '* * * that Lubben may have

exaggerated the amounts of the payments that he and his confederates made toShotwell is entirely probable.' This statement is sought to be portrayed as aeuphemism for a finding that Lubben's trial testimony was perjurious. Werethat so a new trial might well be in order, as the Government acknowledges, forLubben was undoubtedly a crucial government witness. But the record bothdemonstrates the hollowness of that contention and affords no other basis fordisturbing the conclusions of the two lower courts that these petitioners are notentitled to a new trial.

20 Far from constituting a finding of perjury, the District Court's remarkrespecting Lubben's trial testimony was nothing more than part of a generalobservation that the passage of time and the absence of any contemporaryrecords of the Shotwell-Lubben transactions made difficult the pin-pointing ofthe exact amount of Shotwell's unreported black-market income and the amountthereof that was personally kept by one or another of the Shotwell officers. Thesuppression record makes clear that the District Court did not initially addressitself to the question whether Lubben's trial testimony was perjurious, and thatit was not asked to do so until after its opinion denying suppression had comedown.

21 To the contrary, the District Court had not considered it important to determinethe precise amounts of Lubben's black-market payments or of the moneys thatwere retained by Huebner, Sullivan and Cain. It was enough that 'the evidenceis overwhelmingly clear that not only were' some $300,000 to $400,000 ofblack-market payments made to Shotwell by Lubben in the period 1944—1946,but also that 'the greater part' of this money 'was appropriated by Cain, Huebnerand Sullivan for their own personal use.'11

22 Petitioners' motion for a new trial, and its denial, followed the filing of thesuppression opinion. In their argument before the District Court defensecounsel urged, among other things, that the court had 'euphemistically' foundLubben's trial testimony to have been perjurious and, more broadly, that thesecond suppression hearing and trial versions of the disclosure episode differedso widely as to entitle petitioners to a new jury trial of the main case.12 Indenying the motion the district judge observed that he had simply said in hissuppression opinion 'that the amount that Lubben said he paid may have beenexaggerated,' and that he would grant a new trial if he thought there 'was amiscarriage of justice,' but that he did 'not so find.' A careful study of the recordsatisfies us that the District Court did not abuse its discretion in thus ruling.

23 Petitioners' argument on this score centers largely around the variances theyclaim to find between the testimony of Huebner (who had not testified in the

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earlier proceedings) at the second suppression hearing and Lubben's trialtestimony as to the amount of Shotwell's black-market receipts. Huebnertestified to some 16 or 17 occasions on which Black-market money had beenreceived from Lubben, all of which he said had been divided between himself,Cain and Sullivan. These payments aggregated $272,000 in 1945 and 1946, theyears involved in the indictment, as compared with $454,000, Lubben's totaltrial figure.13 But the indicated disparity of $182,000 is more apparent thanreal, for, apart from the fact that Huebner was not the only person in theShotwell organization who had received Lubben money, and the fact that hewas never asked to say whether these were the only Lubben payments hehimself had received, there must be added to this $272,000 total some $125,000to $150,000 that the defense asserted had gone into a 'corn box' (safe depositbox) and was actually used for the purchase of black-market supplies of corn.14

Hence, viewing things most favorably to the petitioners, the variance of whichthey make so much is at best no more than from $32,000 to $57,000.15

24 We think the District Court was fully justified in finding that Huebner'stestimony 'at the supplemental hearing is reasonably consistent and compatiblewith the testimony given by the government witnesses at the trial regardingthese (black-market) payments,' and that it 'tends to corroborate Lubben'stestimony.'16 Such findings, made as they were in connection with what ineffect was a motion for a new trial on newly discovered evidence, must 'remainundisturbed except for most extraordinary circumstances.' United States v.Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562. We find nonehere. This is not a case, as were Mesarosh v. United States, 352 U.S. 1, 77 S.Ct.1, 1 L.Ed.2d 1, and Communist Party of United States v. Subversive ActivitiesControl Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, where a convictionmay be regarded or is conceded to have rested on perjured testimony.17 Tooverturn the denial of a new trial in this case by the two lower courts would betantamount to saying that any subsequently discovered inaccuracy in thetestimony of an important trial witness, which might have affected hiscredibility in the eyes of the jury, would entitle a convicted defendant to a newtrial. We cannot so hold.

25 Petitioners next argue that the remand proceedings were the product of fraudand other gross improprieties on the part of the Government and that theyshould therefore be held for naught The contention has three aspects: (1) thatthe Government did not disclose to this Court that the testimony of threewitnesses proffered in support of its motion to remand was contrary in somerespects to that which they had given, or failed to give, on previous occasions;

(2) that the Government failed to establish on remand that there had been anyperjury on the part of the defense at the original suppression hearing, and itselfsuborned three of its remand witnesses to testify falsely; and (3) that theprosecution utilized the delay occasioned by the motion to remand (355 U.S.236—237, note 6, 78 S.Ct. 248) to dragoon witnesses into testifying in supportof the Government's view of things.18 We find no truth in any of these seriouscharges.

26 The most that could possibly be claimed respecting the absence of anyreference in the remand papers to prior inconsistent statements by the profferedwitnesses19 is that it was a mistake of judgment on the part of the Governmentnot to include such a reference. But, without minimizing the unqualified duty ofscrupulous candor that rests upon government counsel in all dealings with thisCourt, to characterize this episode as amounting to a fraud upon the Court is, tosay the least, utterly extravagant.

27 The issue tendered by the motion to remand was of course not whether theGovernment's new evidence was true or false, but whether it warranted areexamination of the suppression issue by the District Court. The evaluation ofthis evidence, including the credibility of the three witnesses in question, was asthis Court recognized (355 U.S., at 241, 244—245, 78 S.Ct. at 250, 252—253)a matter for the District Court. In these circumstances it is understandable thatthe Government might have considered that if a remand were ordered theDistrict Court was the appropriate forum in which to make available anyimpeaching material in its possession. Cf., e.g., Jencks v. United States, 353U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; United States v. Zborowski, 2 Cir.,271 F.2d 661. In any event the Government having fully disclosed all suchmaterial in the trial court, and that court having taken it into account in makingits findings, infra, p. 360, it would be captious to hold that the failure to advertto it in this Court now vitiates the remand.

28 The claim that the remand should be set aside because no perjury was found inconnection with the petitioners' original testimony relating to the disclosureboth misconceives the terms of the remand and misportrays the record. Ourremand did not have the narrow compass attributed to it, but broadly directedthe District Court to reexamine the whole disclosure episode (355 U.S., at 245—246, 78 S.Ct., at 253—254)—a direction to which the proceedings belowwere entirely responsive. And the District Court plainly found that the courseand nature of the disclosure had been deliberately misrepresented by petitionersin significant respects at the earlier suppression hearing.20 On the other side ofthe coin the District Court. after full and painstaking consideration, found thatthe facts, except in one particular, were as anticipatorily represented in the

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Government's remand papers, and that Huebner, Graflund and Lima (note 19)had testified honestly.21 It is certainly not for us to reassess their credibility.

29 Finally, as to the Government's alleged dragooning of these witnesses, itappears that in connection with a new grand jury investigation that wasconducted from April 1956 to February 1957 into these same black-markettransactions (resulting in a further indictment against these individualpetitioners and others), Graflund Huebner, and Lima, among some 64witnesses, were called for questioning on more than one occasion. But there isnothing in this record to indicate that these repetitive appearances wereoppressive or that any of their questioning was attended by improper methodsof interrogation.22 And the District Court, after elaborate exploration, found thecharges of prosecutorial overreaching baseless.23

30 We now leave the remand proceedings and turn to the only two challengespressed here with respect to the main case itself.

31 In March 1958, more than four years after the trial, petitioners filed amendedmotions attacking the grand and petit jury arrays. These motions, predicated on'newly discovered evidence,' alleged that both juries were illegally constitutedbecause the jury commissioner delegated his selection duties to one of hisprivate employees; volunteers were permitted to serve on the juries; and theClerk of the District Court failed to employ a selection method designed tosecure a cross-section of the population.

32 We think, as the two lower courts did, that petitioners have lost these objectionsby years of inaction. Rule 12(b)(2) of the Federal Rules of Criminal Procedure,18 U.S.C.A. provides: 'Defenses and objections based on defects in theinstitution of the prosecution or in the indictment or information other than thatit fails to show jurisdiction in the court or to charge an offense may be raisedonly by motion before trial. * * * Failure to present any such defense orobjection as herein provided constitutes a waiver thereof, but the court forcause shown may grant relief from the waiver.' Petitioners concede, as theymust, that this Rule applies to their objection to the grand jury array,24 but denythat it applies to their objection to the petit jury array. On the latter point we donot agree. In Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93L.Ed. 187, this Court stated that a challenge to the method of selecting the petitjury panel comes too late when not made before trial. And the lower federalcourts have uniformly held that an objection to the petit jury array is not timelyif it is first raised after verdict. See, e.g., Hanratty v. United States, 5 Cir., 218

V.

F.2d 358, 359, cert. denied, 349 U.S. 928, 75 S.Ct. 770, 99 L.Ed. 1259; UnitedStates v. Klock, 2 Cir., 210 F.2d 217, 220; Higgins v. United States, 81U.S.App.D.C. 371, 160 F.2d 222, 223, cert. denied, 331 U.S. 822, 67 S.Ct.1304, 91 L.Ed. 1839; United States v. Peterson, D.C., 24 F.Supp. 470.

33 Petitioners have not advanced any reasons for overturning this settled course ofdecision. Rather they argue that when public officials violate constitutionalrights by actions whose illegality is not readily noticeable by the litigants ortheir counsel, sufficient cause has been shown to warrant relief from applicationof the Rule. Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181,is said to stand for the broad proposition that technical rules of procedure donot prevent this Court from considering the merits of a basic challenge to themethod of jury selection.

34 In the circumstances of this case, petitioners' contentions are withoutfoundation. In denying the motions the District Court found that the factsconcerning the selection of the grand and petit juries were notorious andavailable to petitioners in the exercise of due diligence before the trial. Thesame method of selecting jurors in the district had been followed by the clerkand the jury commissioner for years. Inquiry as to the system employed couldhave been made at any time. Indeed, the acceptance of volunteers for the jurieshad received publicity in the newspapers, and their presence on the petit jurycould have been ascertained at the time it was constituted. And Ballard lendsno support to petitioners' position, for in that case the challenge to the jurypanel had been timely made and preserved. See 329 U.S., at 190, 67 S.Ct., at262.

35 Finally, both courts below have found that petitioners were not prejudiced inany way by the alleged illegalities in the selection of the juries. Nor dopetitioners point to any resulting prejudice.25 In Ballard it was said (at p. 195,67 S.Ct. at p. 265) that 'reversible error does not depend on a showing ofprejudice in an individual case.' However, where, as here, objection to the juryselection has not been timely raised under Rule 12(b)(2), it is entirely proper totake absence of prejudice into account in determining whether a sufficientshowing has been made to warrant relief from the effect of that Rule.

36 We need express no opinion on the propriety of the practices attacked. It isenough to say that we find no error in the two lower courts' holding that theobjection has been lost.

37 Petitioner Sullivan contends that he was denied a fair trial in two respects: (1)the only specific evidence against him was an alleged admission which Lubbentestified Sullivan made to him testimony which Lubben, it is asserted, laterrecanted; and (2) the trial judge's instructions allowed the jury to considerevidence that had not been admitted against him.

38 At one point in the trial Lubben testified that, to the best of his recollection, hehad a conversation with Sullivan on or about February 14, 1946, concerning theadvisability of paying the black-market overages by check. According toLubben: Sullivan asked 'Are you sure this (the payment) is not appearing onyour books any place?' Sullivan then proceeded to state: 'Well, Dave, you knowhow it is. You have a place in New Jersey, a farm in New Jersey. This money Ihave been using in my farm. * * * I am getting a new driveway * * * put in. * ** That is the only way I can do it today, with the tax situations the way theyare.' When the trial resumed the following day, Lubben volunteered acorrection of his previous testimony, stating that the conversation had takenplace as described but not on February 14, 1946; it had occurred, he thought,'some time around September or October of 1946.' It is apparent, therefore, thatthe substance of the testimony was not recanted.

39 There was, moreover, additional testimony against this petitioner. Sullivanhimself admitted at the trial that he had knowledge of the Shotwell black-market receipts, maintaining, however, that the money was used solely for thepurchase of black-market supplies. But Roeser, comptroller of Shotwell,testified that, when directed, he turned over cash moneys received from Lubbento Cain, Huebner, and Sullivan. Ericson, shipping superintendent of Shotwell in1945 and 1946, stated that although his memory was not clear as to theparticular officials present when the devious method of shipping black-marketcandy to Lubben was inaugurated,26 he would not have shipped in this waywithout instructions from Cain, Sullivan, or Huebner. And Sullivan's ownanswers on cross-examination respecting his knowledge of the necessity forkeeping the Lubben black-market transactions off Shotwell's books were, to saythe least, highly equivocal.27

40 The foregoing evidence, coupled with Sullivan's status as executive vice-president of Shotwell and his general prominence at the policy level of thecompany's affairs, was amply sufficient to carry the case as to him to the juryand to support its verdict of guilt.

41 The trial judge repeatedly cautioned the jury throughout the trial that certainevidence, particularly the disclosure documents turned over to the Treasury,

was not being admitted against Sullivan and should not be considered againsthim. It is claimed, however, that the court's instructions nevertheless allowedthe jury to consider such evidence. The allegedly erroneous portion of thecharge states:

42 'You have heard the testimony regarding Cain's alleged admission as to thefalsity or incompleteness of these tax returns, and his explanation as to why, inhis opinion, at the time he assumed they were false and inaccurate.

43 'There has also been received in evidence work sheets and data compiled byMr. Busby, and certain data compiled by Mr. Cain with respect to an allegedtentative compilation of the overages, and the disposition of such receipts byShotwell, for raw materials, and the nature and character of the disposition,which was allegedly made.

44 'All of the testimony should be considered by you, that is, all that testimonyshould be considered by you in view of the circumstances, and understandingof the parties in so far as it may bear upon any intent of the parties to wilfullyviolate the income tax laws or their good faith, or lack of good faith in thematter.'

45 This instruction must be read in context. Shortly after it was given, the courtproceeded to charge:

46 'Any statement or act of any of the defendants not in the presence of anotherdefendant is not binding upon the absent defendants, even though one or moreof the defendants were mentioned in the converstaion, nor are such matterscompetent evidence against any other defendant not present. I have limited, youwill observe, certain evidence during the trial, from time to time, as beingcompetent only as to certain defendant or defendants, that is, by way ofexample, what Mr. Huebner, or Mr. Cain may have said or done in the absenceof Mr. Sullivan, would not be binding or competent as to Mr. Sullivan.'

47 This limiting instruction is clear. It must be presumed that the juryconscientiously observed it. United States v. Harris, 7 Cir., 211 F.2d 656, 659,cert. denied, 348 U.S. 822, 75 S.Ct. 34, 99 L.Ed. 648. Surely it would havebeen impracticable for the trial judge, as he discussed the evidence in his finalinstructions, to have reminded the jury with respect to each of the many itemsof proof mentioned that it had been admitted only against certain nameddefendants and should not be considered against the others. We find no error inthe charge.

48 The judgment of the Court of Appeals as to all petitioners must be affirmed.

49 Affirmed.

50 Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. JusticeDOUGLAS concur, dissenting.

51 I think these criminal convictions should be reversed and a new trial grantedbecause of serious errors denying the defendants the protection of twoconstitutional guarantees for a fair trial.

52 First. The jury verdicts rest in part on confessions obtained from the defendantsby governmental promises of immunity from criminal prosecution, in violationof the Fifth Amendment.

53 Second. If the Government's chief witness on the remand hearing gave truthfultestimony, the jury's conviction of the defendants rests in substantial part onfalse testimony of the Government's chief trial witness.

54 An understanding of these two questions requires a statement of thecircumstances out of which they arise. The Shotwell Manufacturing Companyand its principal officers were convicted in Federal District Court of willfullyattempting to evade Shotwell's corporate income taxes for the years 1945 and1946. The most damaging evidence the Government had against the defendantsconsisted of confessions of the individual defendants that they had failed toreport certain amounts of the corporation's 1945 1946 income. The Governmentalso offered data it obtained from the books and records of the corporatedefendant after these confessions were made. At the time these confessionswere given, the Treasury Department had in effect its widely publicized andproclaimed 'voluntary disclosure policy,' which, according to Secretary of theTreasury Vinson, promised immunity from prosecution to any tax evader, evena 'willful evader,' 'who makes a disclosure before an investigation is underway.'1 This whole record shows beyond doubt that before any investigation ofthem had been initiated the defendants learned of the Treasury's promise anddisclosed their failure to report income with the full expectation of receiving thebenefits of the promise. Moreover, they made their confessions and made thedata available only after assurances of a Chief Deputy Collector that 'if thedisclosure (was) timely and the facts * * * related to him were correct, he sawno reason why the immunity policy of the Bureau should not be applied in thisparticular matter.' After the defendants, solely in reliance on the policy, hadvoluntarily given government agents enough evidence to show a failure to

report a substantial part of Shotwell's 1945—1946 income, the Governmentnevertheless refused the promised immunity and secured the indictments onwhich these prosecutions are based. Charging that the court should not permitthe Government to reap advantage from broken promises but should compel itto grant the promised immunity, the defendants filed motions to dismiss theindictments. The court refused to dismiss, however, holding that since theTreasury Department's promises of immunity were not authorized by statute,the Government was not legally bound to keep these promises and couldtherefore break faith with its taxpayers whenever it chose to do so. Having beendenied the promised immunity, the defendants then moved to suppress theirconfessions, the incriminating documentary evidence which they had speciallyprepared and delivered to Treasury agents, and all data compiled by theTreasury from books and records made available by the defendants during thetime the Government was leading them to believe that they would be grantedthe immunity as promised. The ground for the motion to suppress was thatsince the confessions had been obtained by promises of immunity their usewould violate the Fifth Amendment's prohibition against compelling a personto be a witness against himself. The District Court refused to suppress, but theCourt of Appeals reversed the convictions because they were based partly onthe confessions and documents.2 While the Government's application forcertiorari was pending before us, the Government filed motions asking us todelay consideration of its application. The Government alleged that, since theconvictions, it had obtained evidence indicating that the defendants and agovernment official had given perjured testimony about the timeliness andcomplete truthfulness of the disclosures. Later, we were asked to remand thewhole case to the district judge for him to give new consideration to the motionto suppress, the grounds for this motion being that the Government had newevidence in the form of affidavits tending to show that the defendants'disclosure of their tax derelictions had neither been 'timely' nor 'in good faith.'The Government claimed to have affidavits showing (1) the disclosures werenot 'timely' because they had not been made until after an investigation hadbeen initiated by the Government and (2) the disclosures were not 'in goodfaith' because the defendants had denied their guilt of criminal tax evasion. ThisCourt granted the motion and remanded the case3 over a dissent which in parttook the position that the alleged new facts bore directly on the guilt orinnocence of the defendants and that the defendants were entitled to have thisevidence submitted to a jury instead of to a trial judge. On remand the evidenceoffered by the Government before the trial judge utterly failed to support theGovernment's charge that the defendants were guilty of perjury in testifying thattheir disclosures to the Treasury Department were made before anyinvestigation had been initiated. As to the second charge that the defendants didnot act in good faith because they denied their guilt, the trial judge found withthe Government. It is of great importance, however, that the chief government

I.

witness on remand (Huebner) testified that the chief government witness at thetrial before the jury (Lubben) had lied to the jury in giving evidence which therecord shows was crucial to the jury's finding of guilt. Although the districtjudge was compelled to find from the record that it was 'entirely probable' thatthis government witness Lubben had 'exaggerated' in giving testimony beforethe jury, he nevertheless reaffirmed his refusal to suppress the incriminatingevidence and also denied a motion for a new trial because he thought thedefendants were guilty anyway and there would therefore be no 'miscarriage ofjustice' in denying them a new trial before a new jury to hear the new evidence.This time the Court of Appeals affirmed.4 It is out of this situation that the twoissues arise, the rights protected by the Fifth Amendment, and the right to a fairtrial before a jury.

55 I think the Court of Appeals was wrong in affirming the refusal to suppress butwas right the first time when it held that the use of these confessions inducedby the Government's promise of immunity 'was a violation of each defendant'sprivilege against being compelled in any criminal case to be a witness againsthimself, as guaranteed by the Fifth Amendment to the constitution of theUnited States.'5

56 'The constitutional test for admission of an accused's confession in federalcourts for a long time has been whether it was made 'freely, voluntarily andwithout compulsion or inducement of any sort."6 Confessions of guilt 'areinadmissible if made under any threat, promise, or encouragement of any hopeor favor.'7 This Court's leading discussion of the admissibility of confessions,admissions, and incriminating statements both at common law and under theFifth Amendment is contained in Bram v. United States, 168 U.S. 532, 18 S.Ct.183, 42 L.Ed. 568 (1897). That opinion written by Mr. Justice White traces thedevelopment of the prohibitions against the use of involuntary confessions bothin England and in this country. It concludes that in United States courts,

57 'the issue is controlled by that portion of the fifth amendment to the constitutionof the United States commanding that no person 'shall be compelled in anycriminal case to be a witness against himself." 168 U.S., at 542, 18 S.Ct., at187.

58 To explain what confessions are admissible under the Fifth Amendmentbecause not 'compelled,' the Court quoted and adopted this passage from 3Russell on Crimes 478 (6th ed.):

59 "But a confession, in order to be admissible, must be free and voluntary; that is,must not be extracted by any sort of threats or violence, nor obtained by anydirect or implied promises, however slight * * *. A confession can never bereceived in evidence where the prisoner has been influenced by any threat orpromise; for the law cannot measure the force of the influence used, or decideupon its effect upon the mind of the prisoner, and therefore excludes thedeclaration if any degree of influence has been exerted." 168 U.S., at 542—543,18 S.Ct., at 187. See, to the same effect, Wilson v. United States, 162 U.S. 613,622, 16 S.Ct. 895, 899, 40 L.Ed. 1090 (1896).

60 Thus it was clearly pointed out that a 'compelled' confession within the FifthAmendment's meaning is one induced either by fear of injury or hope ofreward. In order to emphasize this conclusion, the Court in Bram, time aftertime, repeated for itself or quoted with approval prior statements thatconfessions to be 'free and voluntary' must not have been induced or influencedby 'hope or fear,'8 'compulsion * * * physical or moral,'9 'threat orinducement,'10 or by 'any inducement.'11 A careful reading of the Bram opinioncan leave no doubt that a proper interpretation of the Fifth Amendment,according to that case, would prohibit the Government's use of aconfessioninduced by a hope of immunity such as that solemnly held out by theGovernment here just as much as it would bar use of a confession obtained byviolence or threats of violence. And no one of these statements, which the Courtprofesses today to accept, leaves this Court with the slightest freedom to inventexceptions to the Fifth Amendment rule that confessions so induced areinadmissible. Not only has the Bram case been repeatedly cited with approvalby this Court12 but also its declaration that confessions are equally involuntarywhether obtained by hope or fear is in harmony with the rule that has obtainedin a majority of the state courts for more than a century.13 Indeed, it is acommonplace, known perhaps to any lawyer who has ever tried half a dozencriminal cases, that before offering a confession against a defendant a properpredicate must be laid, that is, proof that the confession was not the result ofany threat or promise of reward.14

61 The continuing vitality of the Fifth Amendment's protection as defined in Bramwas specifically recognized in Smith v. United States, 348 U.S. 147, 75 S.Ct.194, 99 L.Ed. 192 (1954), which involved circumstances startlingly like thosein this case. Smith was prosecuted for attempted tax evasion. He contended thata confession of his should not have been admitted into evidence because hegave it on an understanding with a government agent that he would be grantedimmunity. Smith's accountant testified that the agent had promised thisimmunity and that the data showing guilt would not have been given had thesegovernmental promises not been made. The trial judge submitted this issue to

the jury with the instruction that it should reject the confession if 'trickery,fraud or deceit' had been 'practiced on petitioner or his accountant.' This Courtheld that on those facts the issue was properly submitted to the jury and that'the jury, in arriving at its general verdict (of guilt), could have found from theconflicting evidence that no fraudulent inducement had been offered petitioneror his accountant.' 348 U.S., at 151, 75 S.Ct., at 196. In the present case, theundisputed evidence given both by the Government's tax agent himself and bydefendants' accountant was that the agent had assured the defendants that theGovernment's general policy of immunity would be applicable to them. TheCircuit Court found as a fact that this promise was made by the governmentagent.15 On remand, the District Court found it 'entirely probable' that thepromise had been made. The Court of Appeals in its second opinion did notdisturb its earlier findings, and indeed no one, not even the Government or thisCourt, appears to challenge these findings. Thus, the facts proved in this casewould, had they been present in the Smith case, have resulted in the exclusionof Smith's incriminating statement as 'trickery, fraud or deceit.'16

62 Although the Court purports to accept the Bram holding that the FifthAmendment of itself forbids the use of a defendant's confession 'obtained byany direct or implied promises, however slight,' its opinion most decidedlyrejects this interpretation of the Amendment. The rejection lies mainly in theCourt's attempt to prove what I deem to be the unprovable, namely, thatalthough these confessions 'might not been made in the absence of theTreasury's offer' of immunity, they nevertheless were not induced or influencedby that offer. In order to reach its astonishing conclusion, the Court usesvarious alternative formulas, each of which in turn lops off a significant part ofthe protections the Fifth Amendment has always been thought to afford.

63 The Court says that because the Secretary of the Treasury addressed hispromise of immunity 'to the public generally and not to particular individuals'the Fifth Amendment leaves the Government wholly free to use all confessionsinduced by this general device. Certainly this excuse for denying the protectionof the Fifth Amendment cannot be inferred either from the language of theAmendment or from anyithing said in the Bram case. It is impossible for me tounderstand why a confession obtained by promises addressed to the publicgenerally is any more 'voluntary' than one obtained by promises addressed toidentified tax payers known or suspected to be delinquent. Indeed, a generalpromise of immunity announced by a member of the President's Cabinet islikely to be far more authoritative and compelling than is an isolated promiseby a subordinate official. Surely the Government cannot escape the commandof the Fifth Amendment not to use government-induced confessions simply bymultiplying the number of people who are promised immunity. Moreover, even

if specific statements to individuals are required, the confessions in this casewould still be barred by the Fifth Amendment. This is because, as has beenpointed out, a Chief Deputy Collector for the Government assured thedefendants' accountant that he saw no reason why their disclosures should notentitle them to immunity under the general policy.

64 The Court also seems to state that the Fifth Amendment does not bar theadmission of confessions induced by promises of immunity unless given whileunder suspicion of crime in response to a specific promise by a particularofficer like a policeman. There is no support for this in the Bram case. TheCourt in that case, in stating that a confession induced by a promise, howeverslight, was involuntary and therefore inadmissible under the Fifth Amendment,in no way intimated that the fact of involuntariness depends upon the presenceof a policeman or upon any circumstance other than that a promise has beenmade which induced a confession. It seems to me that a taxpayer, uneasy aboutpossible criminal prosecution and worried about its destructive effect on hisfamily, reputation, and business, would be susceptible to an official promise ofimmunity just as any other person fearful of prosecution for some otheroffense.17 And if independent coercive circumstances—like the presence ofpoliceman, with or without club—are necessary to bar the use of a confession,as the Court indicates, then the Court is denying that a promise by itself, nomatter how authoritative, can ever result in a compelled confession prohibitedby the Fifth Amendment.

65 The Court concludes that 'the voluntary disclosure policy left (petitioners)wholly free to disclose or not as they pleased. In choosing to act as they did,petitioners, far from being the victims of that policy, were volunteers for itsbenefits.' Labeling petitioners as 'volunteers' proves nothing. Of course theywere 'volunteers.' It was to get 'volunteers' that the Government established thepolicy. Petitioners learned that their Government had promised immunity fordisclosures and they volunteered to make them because of that promise. Butpetitioners' confessions are no more 'voluntary'—in the sense of not beinginduced by a promise—than those of suspects who choose to accept thebenefits of a policeman's promise of immunity rather than to run the risk ofbeing convicted on independently secured evidence. The Court's interpretationof the Fifth Amendment as permitting the use of confessions obtained bypromises because those who relied on the promises were 'volunteers' effectivelyscuttles the protection of that Amendment.

66 While the Court uses language which purports to give the same full scope thatBram did to 'jealously guarded constitutional principles' of the FifthAmendment, it is with regret that I am compelled to say that I think the Court

promises more than it performs. The Court treats the cases of Rogers v.Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), and Bram v.United States, supra, as if both were rested on the Fifth Amendment. Rogers,however, related to a confession used in a state court, the admissibility of whichdepended on the Due Process Clause of the Fourteenth Amendment. Whilesome of us believe that the Due Process Clause made the Fifth Amendmentapplicable to the States, Rogers was obviously written on the premise that theDue Process Clause forbids the use of confessions only if the circumstancesunder which they are used are so offensive or unreasonable as to 'shock theconscience' or offend 'civilized standards of decency.'18 Bram, on the otherhand, rested exclusively on an interpretation of the Fifth Amendment's specificlanguage forbidding the Government to compel a defendant to be a witnessagainst himself. This distinction is important because the more precise words ofthe Fifth Amendment as construed in Bram are a far more certain safeguardagainst the use of compelled confessions than the tractable and pliableprotections which the Court may or may not afford under the due process'shock the conscience' test. The Fifth Amendment, as construed in Bram and asrecognized in Smith v. United States, supra, forbids the use of confessionsobtained by governmental promises of immunity on the theory that suchpromises alone render confessions involuntary without requiring the presenceof any other coercive circumstances.19 Moreover, if the admissibility of theconfession is to be measured by standards of decency it is difficult to reconcilewith those standards a holding that the Constitution forbids the Government touse a confession induced by the promise of a police officer or other subordinateagent but that it is wholly permissible to use a confession induced by theSecretary of the Treasury, one of the highest-ranking men in the Government. Icannot deny that such a standard for governmental conduct shocks myconscience. This is particularly true when I consider the nature of theassurances solemnly given to delinquent taxpayers by Secretary of the TreasuryFred M. Vinson, who later became Chief Justice of the United States. He saidthat the

67 'man who makes a disclosure before an investigation is under way protectshimself and his family from the stigma of a felony conviction. And there isnothing complicated about going to a collector or other revenue officer andsimply saying, 'There is something wrong with my return and I want tostraighten it out."20

68 This simple description of all the taxpayer had to do save himself and hisfamily from the stigma of a prosecution is no longer recognizable in the ex postfacto quagmire of complicated restrictions and conditions created by the Courttoday.

69 Another theory of the Court, which also departs from the Bram case, seems tobe that there was a constructive withdrawal of the promised immunity becauseof the Court's findings that the defendants failed to comply with the promise'scondition of complete truthfulness. With this legal fiction as a premise, theCourt moves inexorably to the conclusion that the confessions were not inducedby any promise to the defendants. Nothing that I can find in the record after acareful reading furnishes a basis for the most attenuated inference that thesedefendants would have come forward and disclosed any tax derelictions hadthe Government not announced its voluntary disclosure policy and made it clearthat these particular defendants could expect its benefits. The Court is heredeparting from the proper test as laid down in Bram for determining whether adisclosure is induced by a governmental promise. It was there said that aperson is 'involuntarily impelled to make a statement when but for the improperinfluences he would have remained silent.' 168 U.S., at 549, 18 S.Ct., at 189.But for the immunity promised to the defendants in this case, it isinconceivable that they would have volunteered evidence upon which theycould be tried and perhaps convicted of tax evasion. Moreover, every promiseheld out by the Government is intended to be conditined on full and truthfuldisclosure. The majority's rule would require that any confession obtained by agovernmental promise be admitted if it contains something less than the wholetruth.

70 What the Court is in fact holding here is that the defendants should be deniedtheir right to have their confessions excluded because while the confessionswere in part truthful they were not truthful as a whole.21 This Court has heldunder the Due Process Clause of the Fourteenth Amendment that a confession'struth or falsity is not relevant to the question of its admissibility.22 I do notbelieve the Court should adopt a new Fifth Amendment shrinking device underwhich a defendant's lack of 'good faith' and failure to be 100% truthful in hisinduced confession works a forfeiture of his Fifth Amendment rights. Probablyfew confessions in criminal cases are ever wholly truthful. Even a cursoryexamination of such cases in this and other countries would show thatdefendants who confess nearly always lay all the blame possible on someoneelse or in some way seek to justify their conduct in whole or in part.23 Certainlythis Court could not, consistently with its prior cases, hold admissible aconfession obtained by a promise or threat from a person who confessed that hehad assaulted another but falsely and fraudulently claimed that he had done soin self-defense. Nor could it admit the confession of a person suspected ofreceiving stolen goods who, after beatings, admitted possession of the goods butfalsely claimed he did not know they were stolen. Yet, by the majority's viewhere, such compelled confessions will be admissible because, being partlyfalse, they are 'fraudulent,' not made in 'good faith.' This is the first time, to my

knowledge, that a defendant's constitutional right not to be compelled to be awitness against himself has even been conditioned on his failure to come intocourt with 'clean hands.' I cannot agree to this new doctrine that a compelledconfession can be admitted because partly untruthful. Such a step backwards isparticularly dangerous because of the ease with which this case can beextended to admit confessions obtained not by physical violence or threats ofviolence but by more 'civilized' techniques of compulsion, which we havecharacterized as inherently coercive24—techniques of physical exhaustion,phychological pressure, trickery, promises of leniency, and the like whichsometimes subtly but always certainly undermine an accused's freedom toconfess or not, as he chooses.25

71 To my way of thinking, it is the Court itself, instead of the defendants, whichturns 'an important constitutional principle upside down.' It does this bypermitting the Government to prove its case with confessions obtained bysolemn promises of immunity on the theory that the confessions were not givenin 'good faith' and were therefore fraudulent. This conclusion is based on afinding that, while the defendants confessed a failure to report income, theyfalsely stated at the same time that their receipts were offset by businessexpenditures. In short, the Court believes that the defendants are guilty of thetax evasion charged and therefore have forfeited their Fifth Amendment rights.I cannot agree that the Court is right in making the admissibility of theconfessions turn on the guilt or innocence of the defendants. The denial of thebenefits of the Fifth Amendment on the Court's belief that the defendants areguilty is a high price to pay for a conviction and a new, dangerous inroad on theprotections of that Amendment. But if this is to be the standard, then I can seeno escape from the conclusion that the admissibility of the confessions shouldultimately be determined by a jury—not by the judges of this or any othercourt.26 Moreover, if it be assumed that the Court is correct in concluding thatthese defendants have been guilty of fraud or perjury in their confessions, thenunder normal ideas of due process the proper procedure would be to indict themon these charges and let them be tried. But this Court should not use itsjudgment of the defendants' guilt of any crimes as an excuse for depriving themof the constitutional guarantees of the Bill of Rights.

72 Whatever the Court's reasons for affirming this judgment, it is plain that Smithv. United States, supra, has been undermined, the Bram case has beenpractically repudiated, and, worse still, the Fifth Amendment's prohibitionagainst involuntary confessions has become far less of a constitutionalprotection than it ever was before. There is no basis in the Amendment itselffor reducing its scope as the Court does today, and no precedent, weak orstrong, old or new, can be found to support it. It is this Court's own investion.

II.

This Court alone therefore, this 14th day of January 1963, is entitled towhatever credit is due for enfeebling our Bill of Rights in this way. It earns thatcredit by ignoring the wise and solemn warning given in Boyd v. United States,116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886):

73 'It may be that it is the obnoxious thing in its mildest and least repulsive form;but illegitimate and unconstitutional practices get their first footing in that way,namely, by silent approaches and slight deviations from legal modes ofprocedure. This can only be obviated by adhering to the rule that constitutionalprovisions for the security of person and property should be liberally construed.A close and literal construction deprives them of half their efficacy, and leads togradual depreciation of the right, as if it consisted more in sound than insubstance. It is the duty of courts to be watchful for the constitutional rights ofthe citizen, and against any stealthy encroachments thereon.'

74 To construe the Fifth Amendment's prohibition against the use of compelledtestimony as not protecting these confessions induced by promises of immunityis certainly no liberal construction of that part of our Bill of Rights. I cannotagree to this holding because I still believe that constitutional provisionsdesigned to protect individual liberty from oppressive procedural tactics bygovernment should be liberally construed in order to prevent their erosion andobliteration by insidious Legislative, Executive, and Judicial encroachments.27

The Court's holding today will probably give great aid and comfort to manyearnest people who sincerely believe that this provision of the FifthAmendment against the use of government-induced confessions is an unworthybarnacle on the law, a sixteenth century strait jacket, which should be removedas an outworn technicality of a bygone age. Even if this is a sound view, whichI do not believe, it should not be put into effect by judicial decisions like thisgradually narrowing the protective scope of that Amendment but only by theconstitutionally ordained amending process so that the people of this Nationcan determine for themselves whether they wish to abandon this part of theirheritage of freedom.

75 Since the record now contains new testimony offered by the Government onremand which thoroughly discredits the Government's main trial witness uponwhose testimony the jury's verdict of guilty in large part rested, the defendantsare being denied their constitutional right to a fair jury trial by the failure togrant them a new trial before a new jury which can hear this new evidence indetermining their guilt or innocence.

76 This extraordinary situation arises out of the following circumstances:

77 Shotwell Manufacturing Company was in the candy business. During theO.P.A. days it sold candy at over-the -ceiling prices to companies wholly or inpart operated by one Lubben. Shotwell did not report as income the amount bywhich the price it received exceeded the O.P.A. ceiling. The defendantsclaimed in their confessions and at their trial that they had to make these over-ceiling charges for candy to compensate for over-ceiling prices they paid forcorn used in making corn syrup and other by-products necessary to theoperation of their candy factory. The defendants' defense, therefore, was that allthe overages paid to Shotwell by Lubben and his companies were paid out byShotwell for raw corn and that, since the unreported income was virtually offsetby unreported expenses, they were not guilty of the tax violations charged. Thetrial judge agreed with this view of the law and charged the jury that defendantswere not guilty if the unreported income from candy was offset by unreportedexpenditures for corn. The crucial questions for the jury to determine, therefore,were how much money was paid by Lubben for candy and how much was paidby Shotwell for corn. The Government relied chiefly on the testimony andrecords of Lubben himself to show how much he had paid Shotwell. Thus,Lubben's truthfulness was a vital issue for the jury to consider. The prosecutorin addressing the jury vouched for the reliability of Lubben as an 'honest,honorable American citizen,'28 the trial judge in passing sentence stated that hebelieved Lubben was telling the truth and that the 12 jurors had believedLubben, and most importantly, it is clear that Lubben's testimony before thejury was significant and weighty evidence tending to peg the overpayments toShotwell at a high level—well above the amount defendants claimed theyreceived—and thus buttress a jury finding that more over-ceiling money waspaid in for candy than went out for corn.

78 When this case was brought here the first time by the Government to securereversal of the Court of Appeals holding that the Fifth Amendment rights of thedefendants had been violated, the case was remanded because the Governmentpresented 'new evidence' in the form of affidavits which tended to show that theindividual defendants had given perjurious testimony at the suppressionhearing.29 The District Court was instructed to hold new hearings and to makenew findings of fact on the timeliness of the defendants' disclosure ofunreported income and on the 'good faith' of the defendants in so disclosing. Atthese hearings on remand, the Government's star witness was one Huebner, aformer Shotwell officer, who was supposed to have received most of thepayments made to Shotwell by Lubben. Huebner testified that he thoughtLubben had 'lied on the stand' at the trial before the jury. Specifically, he statedthat when Lubben recounted an instance in which he had paid one Shotwell

officer $49,000, 'it was a mistake on Lubben's part,' that the officer had neverreceived $49,000. Again, Huebner testified that no overages had been paid onsome chocolate-covered nuts on which Lubben had claimed to have paid 'in theneighborhood of $40,000.' Huebner also testified, and there is other evidence inthe record tending to show,30 that one Tobias said he had helped Lubben doctorhis books which were used against the defendants at the trial. In his writtenopinion, at the conclusion of the hearing, the judge admitted:

79 '* * * that Lubben may have exaggerated the amounts of the payments that heand his confederates made to Shotwell is entirely probable.'

80 Although the judge made this finding, as the record compelled him to find, henevertheless refused to grant the defendants a new trial before a new jurybecause he believed the other evidence proved the defendants guilty and thatthere had therefore been no 'miscarriage of justice.'

81 The effect of this action by the judge was to deny the defendants the right tohave their guilt or innocence determined by a jury from all the evidence,including this new evidence discovered by the Government itself which soseriously impeaches the credibility of the main witness upon whose testimonythe jury's verdicts of guilty rested. Those verdicts have now been shown to betainted, somewhat like the verdict in Mesarosh v. United States, 352 U.S. 1, 77S.Ct. 1, 1 L.Ed.2d 1 (1956). While that case was pending here on certiorari, theGovernment called our attention to the fact that one of the seven witnesses whohad testified against the defendants had lied in other proceedings subsequent tothe defendants' convictions. The Government insisted, however, that thewitness' testimony had been truthful in its case and on that basis objected to thegranting of a new trial but recommended a remand to the trial judge todetermine whether the witness had in fact been truthful. We rejected thatrecommendation and held that the new evidence which undermined thecredibility of the witness and which was produced by the Government itselfrequired a new trial because the defendants' trial had become fatally tainted bythese new disclosures. In the present case, after the defendants had beenconvicted, the Government came forward with evidence tending to show notmerely that one among many witnesses but that its major witness had lied, notin other proceedings but on the central and determinative issue in this very case.Moreover, unlike Mesarosh, we have here an acknowledgment by the districtjudge that the testimony Lubben gave to the jury was probably exaggerated. Inanother case involving a charge by the defendants that it had discovered thatthe Government's witnesses were completely untrustworthy and should beaccorded no credence, this Court remanded on these mere allegations in orderto assure 'findings upon untainted evidence,' and said.

82 'The untainted administration of justice is certainly one of the most cherishedaspects of our institutions. Its observance is one of our proudest boasts. ThisCourt is charged with supervisory functions in relation to proceedings in thefederal courts. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87L.Ed. 819. Therefore, fastidious regard for the honor of the administration ofjustice requires the Court to make certain that the doing of justice be made somanifest that only irrational or perverse claims of its disregard can be asserted.'Communist Party of United States v. Subversive Activities Control Board, 351U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956). Compare Mooney v.Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

83 I fear that the Court does not manifest that same 'fastidious regard for the honorof the administration of justice' when it holds today that the defendants are notentitled to a new trial even though there are strong, compelling reasons tobelieve that the jury in this case did not base its guilty 'findings upon untaintedevidence.'

84 It is true that in refusing to order a new trial when this point was argued to it,the Court of Appeals stated that it could not say that the district judge'sobservation that Lubben had exaggerated amounted to a charge of perjury.31

And this Court likewise puts emphasis on the conclusion that there was noactual finding of perjury. But whether Lubben originally testified before thejury as a willful and deliberate perjurer or whether he somehow justinadvertently 'exaggerated' the amounts he claimed to have paid thesedefendants, the effect on the jury was the same. No human being, not even thetrial judge, is capable of saying that this jury would have convicted thesedefendants had Lubben sworn the whole truth when the jury listened to him.Moreover, in Mesarosh the Solicitor General conceded only that he believedthat a witness against defendants had given testimony in other proceedings thatwas 'untrue.' There was no evidence that the witness had committed perjury,and the Solicitor General specifically refused to concede that he had. This Courtnevertheless held that the witness' testimony was tainted because it wasuntruthful, and it set the convictions aside so that the defendants could get anew trial.32 The Court here is therefore wrong in stating that the Mesarosh'conviction may be regarded or is conceded to have rested on perjuredtestimony.' The Court, as I see it, is simply refusing to follow Mesarosh withoutsaying why.

85 In refusing to remand this case for a new trial, the Court of Appeals relied on itsconclusion that there was enough other innocent evidence in the record tosupport the conviction and on its observation that credibility of Lubben was aquestion for the jury.33 As stated earlier, the district judge also had denied a

The court also held that a 'dishonest and false disclosure cannot be held to be atimely voluntary disclosure.'

In its earlier decision the Court of Appeals rejected petitioners' plea in bargrounded on a claim of immunity. 225 F.2d, at 397. That claim has not been

new trial because he was satisfied that the other evidence showed that thedefendants were guilty. But again, we have held that 'it does not remove thetaint for a reviewing court to find that there is ample innocent testimony tosupport the * * * findings.'34 Further, in Mesarosh we said, 'The district judge isnot the proper agency to determine that there was sufficient evidence at thetrial, other than that given by Mazzei, to sustain a conviction of any of thepetitioners. Only the jury can determine what it would do on a different body ofevidence, and the jury can no longer act in this case.'35 For this reason a newtrial was ordered. A new trial is necessary in this case at which a jury will beprivileged to hear all the relevant testimony and will be free to determine froman honest record whether these defendants are guilty. It advances nothing tosay, as the Court of Appeals said, that credibility is for the jury. In this case, thenew evidence offered by the government witness conclusively demonstratesthat even the jury could not properly weigh credibility at the time of the trialbecause these damaging sworn accusations against Lubben did not exist at thattime.

86 Proper respect for the fairness and integrity of our judicial system demands thatthese defendants not be allowed to stand convicted upon a record containingevidence, the truthfulness of which has now been so thoroughly discredited.Neither the District Court, the Court of Appeals, nor this Court should usurp theconstitutional function of the jury to determine the guilt or innocence of thesedefendants on untainted evidence. There is only one way the defendants can begiven the constitutional rights that have been denied them in this case, and thatis to reverse the case and remand for a new jury trial.

87 Moreover, by granting a new trial the Court would not only assure defendantsthe fair trial to which they are entitled but would also make it unnecessary forthe Court to reach the important, grave, and difficult Fifth Amendmentquestions36 discussed in Part I of this opinion. The general rule of this Court isto avoid reaching such constitutional issues when a case can be fairly disposedof on alternative grounds.37 Although I have sometimes thought the rule hasbeen carried to 'a wholly unjustifiable extreme,'38 this case, it seems to me,offers to the strong adherents of that rule an ideal occasion for its application inthe interests of justice, which would require that a new trial be granted.

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renewed in their present petition for certiorari, and in any event would not beavailing in light of the findings below.

The Fourth Amendment is also relied on, but that Amendment is manifestlyinapposite. See Centracchio v. Garrity, 1 Cir., 198 F.2d 382, 387, cert. denied,344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672.

The sufficiency of the finding as to the falsity of the expenditures is notattacked.

At the trial of this criminal case the District Court charged the jury that itshould acquit if it believed that Shotwell's black-market receipts had been usedfor the purchase of black-market supplies. See 287 F.2d, at 671, note 7.

Address by J. P. Wenchel, Chief Counsel of the Bureau of Internal Revenue, tothe Tax Executives Institute, May 14, 1947.

'This (the disclosure policy) presumes, of course, that the repentant taxpayer co-operates with agents of the Bureau in determining the true tax liability.' PressRelease of statement by Secretary of the Treasury Snyder, May 25, 1947.(Emphasis added.) In Centracchio v. Garrity, supra, 198 F.2d at 389, formerChief Judge Magruder, writing for the First Circuit, recognized that 'it wouldseem that the taxpayer would have to satisfy the court that he made a voluntary,good faith disclosure of all data necessary to a correct computation of hisincome tax deficiencies * * *.'

Busby, Shotwell's auditor, testified at the trial that he was 'acquainted with thepublished statements of the Treasury' concerning the voluntary disclosurepolicy and that, in particular, he had brought to petitioners' attention the addressby the Chief Counsel of the Internal Revenue Bureau quoted above in part.Cain also testified that Busby had explained the Treasury's policy to him andSullivan. More particularly, Sauber, the Bureau's representative, testified that atthe initial disclosure discussion he told Busby that Shotwell had to reconstructthe figures relating to the black-market receipts and expenditures in order to beable to file an accurate amended tax return, and that Cain had represented that'no one in Shotwell Manufacturing Company profited by these transactions.'

The same considerations deprive of even colorable significance the suggestionthat Sauber's 'assurances' to petitioners, on the occasion of their preliminaryinquiry respecting the availability of the Treasury's disclosure policy to anunknown taxpayer in Shotwell's circumstances, should be deemed sufficient tobring their Fifth Amendment claim within the Bram test. For apart from thefact that such assurances were no more than an affirmation of the terms of thepublished disclosure policy of which petitioners were then already well aware,

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it is clear that what Sauber said was expressly conditioned not merely on adisclosure being 'timely' but also on the premise that 'the facts * * * (thenhypothetically) related to him were correct.' As already shown, the falsity ofShotwell's offsetting black-market disbursements was never revealed.

A quite different case would be presented if an offer of immunity had beenspecifically directed to petitioners in the context of an investigation, accusation,or prosecution. A disclosure made in such circumstances would not have fallenunder the voluntary disclosure policy, which by definition was applicable onlyto disclosures made before any investigation had commenced, and would havebeen inadmissible in evidence under the Bram test. Under the rule of Rogers v.Richmond, supra, the truth or falsity of such a disclosure would then beirrelevant to the question ofits admissibility. We agree that the rule of that case,involving a state trial, is equally applicable in a federal prosecution.

The case would also be different had the petitioners, acting under the voluntarydisclosure policy, made an honest disclosure. Whether or not differentconstitutional principles or other considerations would then prevent theGovernment from reneging on its promise by using such material as evidence ina criminal trial need not now be decided. Cf. Smith v. United States, 348 U.S.147, 75 S.Ct. 194, 99 L.Ed. 192.

The following is the full text of this portion of the District Court's opinion:'Some fourteen years have elapsed since the black-market operations ofShotwell took place. No record was kept by Shotwell or any of its officials as tothe premium moneys paid by Lubben and his companies during the years inquestion. It is conceded that thousands of dollars were paid to Shotwell byLubben and his representatives as black-market payments on candy sold toLubben and his companies during 1945 and 1946 without any attempt on thepart of Shotwell to make any written record thereof. Consequently, it isperfectly understandable that when a witness like Huebner attempts to recountthe some sixteen instances when he received substantial sums of money onbehalf of Shotwell as over-ceiling payments on

candy sold by that company, the amounts and circumstances as to thedisposition of the money may not be too clear in his memory. However, thetestimony he has given at the supplemental hearing is reasonably consistent andcompatible with the testimony given by the government witnesses at the trialregarding these payments. Huebner did not take the stand at the firstsupplemental hearing nor during the trial; hence, his testimony as to theamounts of money received and the siphoning of these payments to variousofficials of the company in many instances discloses for the first time whichindividuals were the recipients of Lubben's payments. However, Huebner may

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be mistaken as to the exact amounts of money received and when the paymentswere made. Moreover, that Lubben may have exaggerated the amounts of thepayments that he and his confederates made to Shotwell is entirely probable.But the evidence is overwhelmingly clear that not only were substantial sums ofblack-market money paid to Shotwell as premium payments by Lubben during1944, 1945 and 1946 totaling between three and four hundred thousand dollars,but also that the greater part of this so-called back-market money wasappropriated by Cain, Huebner and Sullivan for their own personal use. Thequestion of good faith does not turn on the exact amount of Lubben moneyHuebner, Sullivan or Cain may have received for their own personal use. ThatCain personally received substantial amounts of the Lubben black-marketpayments and that Sullivan knew of these payments and received a certain sharefor his personal use, but in a lesser amount than Cain and Huebner, is fullyestablished by the record.'

In addition, petitioners' 'Supplement To Motion For New Trial' alleged ninefurther grounds for a new trial, only one of which (the overruling of theirchallenge to the indicting grand jury array) is pressed here. Infra, pp. 361—364.

Other more particular charges against the integrity of Lubben's trial testimonyare also made: (1) that Huebner had contradicted Lubben with respect to apayment of $40,000 over-ceiling prices on certain chocolate-covered nuts (butthe Huebner testimony to which petitioners refer is cloudy on this score); (2)that Huebner had testified that Lubben had 'lied' with respect to a $49,000payment to Graflund (but the record shows only that Huebner stated that he'thought it was a mistake on Lubben's part'); (3) that Huebner had testified oncross-examination that he 'thought (Lubben) lied on the stand here' (but therecord does not show in what respects Huebner thought this was so); and (4)that one Tobias, not called by either side at the suppression hearing, had alteredLubben's books, used in evidence at the trial (but the only basis for thisassertion is Huebner's hearsay testimony that he had been present at themeeting where Tobias had so stated to Cain and Sullivan; moreover, this matterhad already been testified to by Cain and Sullivan at the trial).

The record shows that the 'corn box' records had been destroyed on Cain'sinstructions.

Substantiation of the charges in the indictment did not of course depend on theprecise amounts of Shotwell's black-market receipts, and the jury made nospecific finding on that score, returning a general verdict.

Huebner's testimony, given some 14 years after the events had occurred andwithout the use of any records, was quite general in regard to the amounts of

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the payments made by Lubben; the figures were always stated in roundnumbers, usually preceded by a qualifying adjective. For example, he testifiedthat 'sometime in January, 1945' he received 'between ten and eleven thousanddollars' from Lubben, and that in the 'first part of May of 1945' he received'approximately $30,000.' In contrast, Lubben's trial testimony was precise as tothe amounts paid and was supported by various documentary evidence—invoices, vouchers, book entries, recapitulation sheets, cash authorizationsheets, and checks to cash. For example, Lubben testified that on May 3, 1945,he paid $22,124.13 to Huebner at the Sherman Hotel in Chicago; this testimonywas supported by an expense voucher and a check to cash in that amount, bothof which were put in evidence.

In stating this we have not been unmindful of the fact that subsequent litigationhas shown Lubben's character not to be a savory one. See Giglio v. UnitedStates, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; In re Carlsen, 17 N.J. 338,111 A.2d 393; State v. Weleck, 34 N.J.Super. 267, 112 A.2d 23. Yet, so far asthis trial is concerned, a vigorous cross-examination of him, to the tune of some300 pages of the printed record, evidently failed to shake his credibility in theestimation of the jury.

At the oral argument petitioners' counsel of course disclaimed any intention ofimplicating the then Solicitor General, and we presume the members of hisstaff, in these accusations of wrongdoing.

The witnesses were Graflund, Shotwell's comptroller, Huebner, and Lima, aformer revenue agent. Specifically, the Government is accused of concealingthe following contradictions: (1) Graflund had told government investigatorsand the 1956 grand jury (infra, pp. 459—460) that (as he had testified at thetrial) he had first disclosed the black-market transactions to Busby, Shotwell'sauditor, in January 1948, although his remand affidavit stated that thisconversation had taken place in June 1948; (2) Huebner, prior to executing hisaffidavit, had not recalled having attended a meeting with Sullivan and oneUrban at the Chicago Athletic Club for the purpose of discussing a purchase ofLubben's business so as to enable petitioners to get their hands on Lubben'sbooks and records; (3) the Government's motion indicated that Lima wouldtestify on remand that he had prepared a report showing a Shotwell deficiencyof $20,000 and then destroyed it at his supervisor's direction, but it was notrevealed that in his previous testimony at the trial Lima had not mentioned thepreparation of such a report.

In essence the defense position at the first suppression hearing had been (1)that a general disclosure had first been made to Sauber, the Bureau'srepresentative, by Busby and Cain in late January 1948, some six months

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before the Bureau's Agent Krane had commenced an investigation of theLubben-Shotwell transactions on June 21, 1948; (2) that pursuant to the Januarydiscussion with Sauber the disclosure figures had then been prepared over aperiod of several months and furnished to the Bureau in August 1948; and (3)that none of the Shotwell black-market receipts had been pocketed by any ofthe individual petitioners.

At the second suppression hearing the District Court found (1) that the Busbyand Cain general disclosure had not been made in January 1948, but 'much later'than March 15, 1948, the date testified to by Sauber in the earlier proceedings,although it was before the opening of Krane' investigation on June 21, 1948;(2) that while efforts were made between January and August 1948 to get fromLubben the amounts of Shotwell's black-market receipts, the offsetting black-market supply payments were not made up until a day in July 1948 and werethen 'concocted 'out of thin air," as had been represented in the Government'smotion to remand; and (3) that petitioners' denials of having personallypocketed any of the black-market receipts were false.

The District Court found it 'very probable' that Graflund had first talked withBusby about Shotwell's black-market receipts in January 1948, contrary to hisremand affidavit ((ote 19, supra) and testimony at the second suppressionhearing where he fixed the date as late June 1948. The court, however, foundthat Graflund had given the latter date 'in good faith,' and that his error wasattributable to 'lapse of time' and the probability that there had been suchconversations in both January and June, Graflund having been led to discard theJanuary date because of the 'apparent falsity of Busby's statement that he firstspoke to Sauber in January , 1948.' The court further observed: 'I believeGraflund is attempting now to tell the truth as he remembers the events after thelapse of these many years.'

The court also believed Lima's testimony as described in the Government'smotion to remand (note 19, supra), although it doubted whether the destroyedreport was intended to represent the final disposition of the Shotwell affair.And as to Huebner, see pp. 355—356, supra.

Both Huebner and Graflund testified under cross-examination by petitioners'counsel that they had not been subjected to pressure of any kind.

The court said: 'Defendants urge that Huebner and Graflund, concerned withpossible future criminal prosecution against them by the Government, andLima, worried about his job, have wittingly or unwittingly followed thesuggestions and pattern of events which zealous government officials may haveattempted to inculcate. I have endeavored to make reasonable allowances for

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the lapse of the years which dim memories, and to give due consideration to theclaim of the defendants as to the interest of the revenue officers, and perhapsothers, to encourage these witnesses to follow a chronology of events andcircumstances which may support the Government's contentions as to whatoccurred during the years in question. However, I do not believe that anygovernment official has attempted to have any witness herein testify falsely.'And the court further observed: 'The forthright attitude of government counselto submit all prior statements and Grand Jury testimony of Huebner andGraflund to defendants' counsel indicates a commendable frankness inaffording the Court all of the background which may bear upon their veracity.'

See Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 1501, 6 L.Ed.2d782; United States v. Clancy, 7 Cir., 276 F.2d 617, 631, rev'd on other grounds,365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574; Miranda v. United States, 1 Cir.,255 F.2d 9, 16.

It is not suggested that the contentions made here go to the individualqualifications of any seated grand or petit juror.

When shipping candy to Lubben, the name 'ABC Company' was entered on thebills of lading as the shipper instead of Shotwell.

'Q. Didn't you know it (Lubben payments) would have to be kept off the booksor the OPA investigators would locate it?

'A. That was true after—that wasn't true after June of 1945 when the OPA wentoff, or am I right—1946, June 30th.

'Q. How about the period prior to that?

'A. Certainly it had to be kept off the books or you would be subject to perhapsadditional trouble. I know that now. I didn't know it then, I don't believe.

'Q. Well, are you sure?

'A. Am I sure about what?

'Q. You said you don't believe you knew it then. Are you sure you didn't knowit then?

'A. I don't ever remember discussing it. I am not positive.

'Q. Of course you knew that if it was off the books for OPA purposes, it wasalso off the books for Internal Revenue purposes, didn't you?

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'A. Not necessarily. Not necessarily.'

Hearings on Proposals for Strengthening Tax Administration before aSubcommittee of the House Committee on Ways and Means, 82d Cong., 2dSess. 143—144 (1952) (statement of Secretary Vinson, reprinted fromWashington Post, Aug. 21, 1945). Some form of voluntary disclosure policyhad existed since 1919. In 1945, however, the policy took the form of a clearand direct invitation to taxpayers to come forward and disclose their taxderelictions in reliance on the Government's unequivocal promise of immunity.Hearings, supra, at 78—79 (Press Release of Treasury Department, Dec. 11,1951). Secretary Vinson's statement 'crystallized' the earlier practice into'definite policy,' according to Turner L. Smith, Chief of Criminal Tax Section,Dept. of Justice, in an address reprinted in Section of Taxation, ABA,Symposium on Procedure in Tax Fraud Cases 29, 38—39 (1951).

United States v. Shotwell Mfg. Co., 225 F.2d 394 (C.A.7th Cir. 1955).

355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).

287 F.2d 667 (C.A.7th Cir. 1961).

225 F.2d 394, 406 (C.A.7th Cir. 1955).

United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48(1951).

Wilson v. United States, 162 U.S. 613, 622, 16 S.Ct. 895, 899, 40 L.Ed. 1090(1896).

168 U.S., at 548, 549, 550, 558, 562, 18 S.Ct., at 189, 190, 192, 194.

Id., at 548, 18 S.Ct., at 189.

Id., at 554, 18 S.Ct., at 191.

Id., at 556, 18 S.Ct., at 192.

See, e.g., Hardy v. United States, 186 U.S. 224, 229, 22 S.Ct. 889, 891, 46L.Ed. 1139 (1902); Ziang Sung Wan v. United States, 266 U.S. 1, 15, 45 S.Ct.1, 4, 69 L.Ed. 131 (1924); Lisenba v. California, 314 U.S. 219, 236 n. 16, 62S.Ct. 280, 290, 86 L.Ed. 166 (1941); Waley v. Johnston, 316 U.S. 101, 104, 62S.Ct. 964, 965, 86 L.Ed. 1302 (1942); Ashcraft v. Tennessee, 322 U.S. 143,154 n. 9, 64 S.Ct. 921, 926, 88 L.Ed. 1192 (1944); Smith v. United States, 348U.S. 147, 150, 75 S.Ct. 194, 196, 99 L.Ed. 192 (1954); Gallegos v. Colorado,

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370 U.S. 49, 52, 82 S.Ct. 1209, 1211, 8 L.Ed.2d 325 (1962). But see Stein v.New York, 346 U.S. 156, 190 n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522(1953). The general validity of Bram has been assumed in many other cases.See Mapp v. Ohio, 367 U.S. 643, 656—657, 81 S.Ct. 1684, 1692—1693, 6L.Ed.2d 1081 (1961), where the Court quoted Bram in stating, 'We find that, asto the Federal Government, the Fourth and Fifth Amendments and, as to theStates, the freedom from unconscionable invasions of privacy and the freedomfrom convictions based upon coerced confessions do enjoy an 'intimate relation'in their perpetuation of 'principles of humanity and civil liberty (secured) * * *only after years of struggle."

See 28 L.Ed. 262, note. Cases collected, 20 Am.Jur., Evid., §§ 506, 511; 18L.R.A.(N.S.) 820—824; 50 L.R.A.(N.S.) 1086 1087.

It is interesting to note that in the proceedings on remand, government counsel,in calling the witness Huebner who testified as to matters that incriminated him,was eager to have Huebner state that no one connected with the FederalGovernment had threatened or coerced him or made him 'any promises ofreward or immunity.'

225 F.2d, at 400.

Cf. Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941).

According to the Chief Deputy Collector's testimony, one of the defendnts inthis case was particularly worried about the publicity that would attend acriminal case because he had two boys in school. It was at this point that theCollector assured him that this was a civil case and 'he had nothing to worryabout so far as publicity was concerned.'

Cf. Reid v. Covert, 354 U.S. 1, 41, 44, 65, 77, 77 S.Ct. 1222, 1243, 1255, 1261,1 L.Ed.2d 1148 (1957) (concurring opinions); Rochin v. California, 342 U.S.165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952); Adamson v. California, 332U.S. 46, 59, 67—68, 67 S.Ct. 1672, 1679, 1683, 91 L.Ed. 1903 (1947)(concurring opinion). But cf. Mapp v. Ohio, 367 U.S. 643, 661, 666, 81 S.Ct.1684, 1694, 1697, 6 L.Ed.2d 1081 (1961) (concurring opinion); Kinsella v.United States ex rel. Singleton, 361 U.S. 234, 246 247, 80 S.Ct. 297, 303—304,4 L.Ed.2d 268 (1960).

Similarly there can be no question of 'balancing' Fifth Amendment rightsagainst any kind of 'competing interests.' See Frantz, 'The First Amendment inthe Balance,' 71 Yale L.J. 1424, 1436—1437 (1962).

Hearings, supra note 1, at 144.

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Nowhere is this made more clear than in the Government's argument in itsbrief, in effect adopted by the Court, that

'it is inconceivable * * * that the rule barring the use of involuntary confessionsshould operate to exclude a declaration in which damaging admissions areinextricably intertwined with false self-serving exculpatory statements * * *.'Brief for the United States, p. 42.

Rogers v. Richmond, 365 U.S. 534, 543—545, 81 S.Ct. 735, 740—741, 5L.Ed.2d 760 (1961). See Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct.274, 279, 4 L.Ed.2d 242 (1960); Spano v. New York, 360 U.S. 315, 324, 79S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (1959); Payne v. Arkansas, 356 U.S. 560,567—568, 78 S.Ct. 844, 849—850, 2 L.Ed.2d 975 (1958); cf. Lee v.Mississippi, 332 U.S. 742, 745—746, 68 S.Ct. 300, 301—302, 92 L.Ed. 330(1948); Ashcraft v. Tennessee, 322 U.S. 143, 152 n. 7, 64 S.Ct. 921, 925, 88L.Ed. 1192 (1944); White v. Texas, 310 U.S. 530, 531—532, 60 S.Ct. 1032,1033, 84 L.Ed. 1342 (1940). While these cases were state cases decided underthe Fourteenth Amendment, the Fifth Amendment's specific prohibition againstthe use of compelled testimony should certainly be no less comprehensive thanthe bar against a State's use of such testimony under the Fourteenth.

Compare Mapp v. Ohio, 367 U.S. 643, 656, 81S.Ct. 1684, 1692, 6 L.Ed.2d1081 (1961) (search and seizure).

See, for example, the confession in Reck v. Pate, 367 U.S. 433, 438, 81 S.Ct.1541, 1544, 6 L.Ed.2d 948 (1961).

See Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 926, 88 L.Ed.1192 (1944).

See, e.g., Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716(1940); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Leyrav. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); Fikes v. Alabama,352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Spano v. New York, 360U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Blackburn v. Alabama, 361U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Gallegos v. Colorado, 370 U.S.49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962).

I have previously expressed the view, to which I adhere, that the admissibilityof all confessions should be a jury question. United States v. Shotwell Mfg.Co., 355 U.S. 233, 246, 248—250, 78 S.Ct. 245, 253, 254—255, 2 L.Ed.2d 234(1957) (dissenting opinion).

See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed.

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1118 (1951); Gouled v. United States, 255 U.S. 298, 303—304, 41 S.Ct. 261,262—263, 65 L.Ed. 647 (1921); Counselman v. Hitchcock, 142 U.S. 547, 562,12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892).

'I will tell you who David Lubben is. He is an honest, honorable Americancitizen, who is down here doing his duty, just the way you people are doingyour duty.' This is in marked contrast to a government prosecutor's argument tothe jury in another case, where he said that Lubben was 'a perjurer and a blackmarketeer and practically anything else you want to talk about.' R. 2589, Gigliov. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).

355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).

R. 2556—2557, 2678—2679.

287 F.2d 667, 675 (C.A.7th Cir. 1961).

352 U.S., at 9—12, 77 S.Ct., at 5—7.

287 F.2d., at 675.

Communist Party of the United States v. Subversive Activities Control Board,351 U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956).

352 U.S., at 12, 77 S.Ct., at 7.

See United States v. Shotwell Mfg. Co., 355 U.S. 233, 246, 247, 78 S.Ct. 245,253—254, 2 L.Ed.2d 234 (1957) (dissenting opinion).

E.g., Communist Party, U.S.A. v. Catherwood, 367 U.S. 389, 392—395, 81S.Ct. 1465, 1467—1469, 6 L.Ed.2d 919 (1961); United States v. InternationalUnion United Automobile, etc., Workers, 352 U.S. 567, 589—592, 77 S.Ct.529, 540—541, 1 L.Ed.2d 563 (1957). See also Mapp v. Ohio, 367 U.S. 643,672, 675—677, 81 S.Ct. 1684, 1700, 1702—1703, 6 L.Ed.2d 1081 (1961)(dissenting opinion).

Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 213, 80 S.Ct. 1222, 1226, 4 L.Ed.2d1170 (1960) (dissenting opinion).

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